Casper refuses to order disclosure of Bulger informant

U.S. District Court Judge Denise J. Casper’s first written decision since taking over the Whitey Bulger case did not go well for the defense.

The judge ruled that federal prosecutors did not have to disclose the identity of a confidential informant who reportedly assisted the FBI in seizing Bulger’s winnings from a 1991 lottery ticket.

Defense attorneys J.W. Carney Jr. and Hank Brennan had argued that disclosure was necessary because the informant provided information to the government “that directly contradicts the expected testimony of a key government witness, Kevin Weeks.”

But Casper disagreed and found that Bulger had failed to meet his heavy burden of showing that disclosure was warranted.

“All of this material is fodder for cross-examination of Weeks pursuant to Fed. R. Evid. 611(b) and, at best, the information that Bulger now seeks regarding the CI would be cumulative impeachment material,” she wrote. “That is, since there is no ‘compelling scenario’ that such disclosure is relevant and helpful to the defense or essential to a fair determination of the case, the Court concludes that disclosure of the CI is not warranted here.”

The judge said it is well settled that under the Supreme Court’s 1957 Roviaro v. U.S. decision that disclosure was required when the disclosure of an informer’s identity is relevant or is essential to a fair determination of an issue.

“[But] there is no fixed rule for disclosure and so the Court must ‘balance[] the public interest in protecting the flow of information against the individual’s right to prepare his defense,” she wrote. “Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

The judge still has a number of other matters under consideration, including whether to allow Bulger to argue to the jury that he had immunity to commit the crimes for which he is under indictment.